Taxi for the billable hour …

Much has been written recently (and not so recently) about the shortcomings of the law firm partnership model and in particular the hourly billing approach. I don’t intend to repeat too much of it here and indeed it would be a struggle to add anything of value to Law firm partnership – the Grand Delusion, a most informed and authoritative piece on the subject from Stephen Mayson.

It seems to be broadly accepted in the modern legal marketplace that the hourly billing model is under pressure from clients, commentators and new (and some old) legal practices. The general conclusion is that it drives the wrong behaviours within a firm by defining success in terms of hours billed in preference to value provided to clients. As Lord Neuberger MR (as he then was) summarised in his speech to the Association of Costs Lawyers’ Annual Conference 2012, it confuses cost with value.

But the real damage is done not necessarily by hourly billing in itself, but by the way in which it is too often applied: a misguided aim at the infamous “billing targets”, driven by the need to compensate for the inefficiency of the underlying financial model of the business. With this comes a failure to (or even attempt to) recognise the difference between the hour as a basic raw material and the billable hour as time spent productively in producing an output of value to the client.

For many years I have seen barristers’ fees charged on a time-spent basis. However, the difference in the chambers environment is that no-one is incentivised to spend or charge any more time on a case than is necessary. Quite the contrary, in fact. First, as sole practitioners, barristers tend to have a busy and varied workload and they simply need to get each job done as quickly as possible in order to be able to deal with the next, or risk missing an opportunity. (Of course, doing so without compromising quality is paramount and this balancing act is one of the key challenges facing the busy practitioner).

Secondly, billing is managed by clerks, who are in a unique position of knowledge and understanding about the levels of fees charged throughout the Bar as well as how much a particular piece of work ought to be worth, bearing in mind all the relevant factors. A clerk’s job is to ensure that however much time is spent, a barrister charges a fee which is both fair and proportionate. This kind of scrutiny ensures that even though time-based billing may underpin charging methods, the overriding incentive lies in offering value and thereby staying competitive.

I am not aware of any chambers or indeed any barristers who have hourly billing targets. I suspect this would be counterproductive, as those adopting this approach would stand out from the crowd as expensive and be rejected by the market, resulting in the rapid drying up of instructions. In fact, in most cases these days barristers have to work to fixed or capped fees based on what is acceptable to the market. It is important to add here that in the vast majority of cases “the market” to which I refer is of course made up of solicitors. The irony hardly needs mentioning.

The end result of the chambers approach is the evolution of an effective value-based billing process, even though the means of achieving it may not appear on the face of it to be terribly scientific. Most importantly, it results in proportionality and fairness to the client. It answers Lord Neuberger’s concern by keeping input cost out of the equation. It results in true value.

Of course, the market seems in any event to be moving overwhelmingly in favour of a fixed fee approach.  Indeed, a recent Legal Week Client Satisfaction Report showed that almost 70% of a large sample of corporate clients favoured fixed fees.  In this context it is no exaggeration to say that for a legal practice to be able to survive in (at best) the medium term it will need to be able to adapt rapidly to a fixed fee model.

As I have illustrated above, the Bar is very close to achieving this in its current approach, if not quite already there.  Not bad for a “traditional” profession.  I suspect more fundamental change will be needed by many law firm partnerships.  Any who think they can solve the problem simply by reverse engineering hourly rates will be exposed not only by the Bar, but also by more efficiently structured new market entrants.

The challenge couldn’t be clearer.

Psilkology

Like many who work in the legal business, I very much welcomed last week’s return of the BBC TV series Silk.

Unfortunately for me I wasn’t able to watch it “live” last Tuesday, as I was travelling, but I was able to observe the commentary on Twitter.  As I did so, I found myself somewhat disappointed to read of some of the apparently glaring failings of this new production.  All manner of procedural details and even one or two fundamentals were apparently amiss.  I could hardly bear to watch as, one by one, the legal tweets chipped away at the high esteem in which I held Silk.

I could barely bring myself, a few days later, to actually watch the episode on I-Player.  But I am glad I did.  Yes, of course there were plenty of factual inaccuracies and inconsistencies.  Plenty of drama and enjoyment too, as you would expect.  But what really did grab me was one particular scene which may have appeared innocuous but in fact was an excellent depiction of one of the key roles of the barristers’ clerk and one which I suspect may have been lost on anyone who has not held this position.  Certainly it didn’t seem to be picked up by anyone tweeting on the #silk hashtag.

It was a short scene but, credit where it is due, to my mind it merits attention as a brilliant illustration of the role of psychologist that comes as part of the unofficial job description for any clerk.  Displaying an instinctive sensitivity to Reader’s post-silk rejection disappointment, Billy announces “your caseload just doubled” while handing him several briefs returned from Martha Costello QC.  But before Reader had time to stop, think and feel slightly patronised by what was effectively a display of pity, Billy passed over another brief, this time not a return but a direct instruction, to the words “and here’s one of your own, sir”.  A classic distraction tactic, well known to any parent with young children, as they watch them toddle off delighted with a tennis ball, forgetting that it could have been the iPad …

To my mind, this was a masterful – and typical – display of ego management, the type of which forms an essential part of getting the best out of the sort of independent, driven but inherently insecure characters that generally make up the Bar.  In order to maintain an effective barrister-clerk relationship, this sort of sensitivity is needed constantly to maintain the precarious balance between demonstrating to the barrister how much they rely on the clerk, while not permitting this to cloud their belief that it is principally their own brilliance that drives their success.  In my view, this belief plays a large part in giving the Bar with its unique potency, so it is important that it is guarded with such skill when it could so easily be dismissed as pointless self-indulgence.

It is great to observe this sort of nuance being depicted – whether intentionally or not – to the far-reaching audience of Silk.  I am sure there will be plenty more to learn throughout the series.  I will be watching you, Billy …

To conduct litigation or not to conduct litigation ….

…that is the question.  A rather important question for barristers’ chambers (and not just a smooth and catchy title).

A Bar Standards Board consultation has recently been opened on the new Bar Handbook (which is to replace the current Code of Conduct) and entity regulation.  As you would expect, it involves a detailed and wide-ranging review of all aspects of the Bar and there is much to consider.

The section that particularly caught my eye was the one providing for barristers to be permitted to “conduct litigation” (Part C of the consultation paper at page 29 – PDF).  This comes as no surprise to anyone, having been talked about for some time: Legal Futures reported in May 2010 that a Bar Standards Board survey had found that the majority of barristers wanted this capability.

This could well prove to be a fine illustration of the adage “be careful what you wish for”.  Back in those days (recent developments in the legal services market genuinely make 2010 feel like a different era) I suspect many, like myself, saw this as little more than a convenient step to enable, for example, London sets to help out provincial instructing solicitors by issuing or lodging the occasional pleading or application notice; or possibly firing off the odd letter to the other side.  Saving duplication and cost – what harm could there be in that ?

In the post-LSA era (by which I mean the climate that his existed since, not just because of, the LSA coming into force) the implications are far more wide-ranging.  Sets may be thinking seriously about the possibility of increasing market share and generating additional revenue streams through conducting litigation.  For some this may seem an obvious step in order to progress existing good relationships with key corporate clients, where there is mutual benefit in expanding the currently limited scope of service into a full offering at a very competitive cost.

Of course, it is easy to talk about competitive cost, when this is a benefit that is enabled by the low resource base of the typical chambers setup.  The question arises as to whether the low cost base can be maintained if the required resources to properly conduct litigation are assembled: the resources required to deal with correspondence (often urgently, with little regard for whether or not the relevant barrister is tied up in court) , to take full responsiblity for deadlines, procedural expertise to deal with formal steps in proceedings as well as the knowledge, understanding and personal skills required to deal directly with non-lawyer clients.  At the very least, we are talking about acquiring and/or training additional personnel (which might include solicitors), adopting new processes, additional compliance requirements, new IT infrastructure and probably a significant increase in insurance premiums.  It would also require a change in culture, with barristers being ready and able to step in to “somebody else’s case” as and when circumstances dictate (which they invariably do most unpredictably, as any solicitor knows).

Even if the chambers did possess the capability to adapt in this way, careful thought would need to be given to the extent to which any cost advantage may be eroded, as this is the key to the service being of relevance to the consumer.  Otherwise, why would they choose to take the risk of going anywhere other than their existing, trusted solution in the form of solicitors ?

So yes, this all looks a but complicated, disruptive and the sort of thing your usual conservative barrister is likely to shy away from.  But in the current climate of increased openness to change and (in some quarters) a genuine struggle to remain commercially viable this is not a step that can easily be discounted, particularly with the prospect of the enabling properties of external investment seemingly so readily available.

Of course, many sets will not be considering any such moves, content that they are doing just fine as they are and keen to carry on unaffected.  Ultimately however it will be beyond their control whether they are affected or not – for example, if a major competitor decided to take the step into litigation, suddenly offering clients the attractive proposition of a full range of services and in doing so creating strong, direct relationships with them and thus access to their stream of work.  A set would need to have the ability to act quickly and decisively as a group in order to respond.  It may need to be sufficiently (or at all) capitalised in order to be able to do so.  “It” would need to actually mean something – preferably a cohesive, like-minded group, rather than a bunch of individuals left over after the rest have jumped ship to the more attractive competitor.

It may be that some sets have already proactively considered these possibilities and decided to protect their position by focusing on their strengths of specialisation and cost-effectiveness, ensuring that they remain indispensable to their core clients by demonstrably valuing them more than ever, through strong relationships and excellent service thus providing a compelling proposition that renders other offerings irrelevant.  But this is unlikely to be achieved by simply carrying on as normal.  Financially pressured and increasingly sophisticated corporate clients will be looking closely at other options, so the challenge of remaining the most attractive one will surely be too great to meet by standing still.

It seems clear that, although seemingly benign at first glance, on closer examination that this part of the proposed new Bar Handbook is capable of causing wide-ranging and perhaps unintended consequences.  I have a feeling that the possibilities I have outlined may be regarded by some as a little radical.  In 2010 this may have been the case.  In 2012, the radical view is the one which expects the Bar to remain immune from such external factors and carry on unaffected, just as it always has done.

Riverview Law: Reinventing the wheel ?

This is a copy of my article for The Lawyer (21st Feb 2012) :-

Yet another new entrant to the legal services market emerges.  Again, a new and unique approach is announced, this time to bold claims of a “market disrupting” service delivery model.  Riverview Law is an ambitious new market entrant comprising a mix of solicitors and barristers backed by highly successful and established legal and business service providers.  It is immediately clear from its undoubtedly impressive website that it is promoting a strong brand and has gone to a lot of trouble to understand the needs of its target market.

Re-inventing the wheel ?

The Riverview business model is claimed to have been designed “starting from a blank piece of paper” and “from the customer up, not the law firm partner down”.   I don’t doubt for a moment that this approach has been faithfully and rigorously applied.  It is interesting then that the product of this design bears many similarities in operational terms to the setup of a barristers’ chambers, which I suspect has evolved rather differently.

Both models boast low overheads and flexible legal and support teams.  Enquiries from clients come in to a central customer services unit or clerks’ room.  In Riverview’s case, they are dealt with by “sales advisors” who I suspect perform a role similar to clerks, but with added legal knowledge so as to be able to understand the legal requirements of lay clients, before recommending a solution from their team of solicitors and barristers and identifying the appropriate costing option.

Bar Direct Access

One advantage is already clear.  The Bar has for some time talked a good game about direct access, however it is inherently unable to offer an unqualified service because of the restrictions on the type of work barristers can undertake.  This means that time and effort is required at the outset for investigation as to suitability of each case.  It also involves providing something of a selective service to the client who runs the risk of being told at any time that the barrister can no longer help and that a solicitor is needed.

This does not seem an attractive proposition for a client when compared to the Riverview model which not only enables the completely objective selection at the outset, but also has the flexibility to allow seamless and cost-free transition from one to another as required.  This offers the cost and expertise benefits of direct access, but without the risk.  Barristers are to operate on what seems to be the highest profile deployment yet of the “procureco” model, involving them in the business but at arm’s length thus enabling them to remain in independent practice at their existing chambers while avoiding additional potential for conflict.

Restricted choice ?

A possibly less advantageous aspect is the relatively limited choice of barristers.  I say ‘relatively’ because it has to be compared to the competition which takes the form of the wide choice available at the independent Bar, where it is increasingly common for practitioners to work to fixed budgets often under a not-dissimilar panel arrangement.  Furthermore, Riverview Chambers comprises 43 barristers of which around a third seem to be family law practitioners and only a very small proportion specialise in commercial work.  This constitution is something of an eye-opener in an organisation whose clear focus is on providing services to businesses.

This may be prove to be a shrewd way to barristers (and their chambers) to gain exposure a in this much-coveted area of the marketplace, in return for which Riverview gain their commitment to work at low fixed fees.  There is no reason to suggest that they will not be able do so effectively, but it remains to be seen whether this finds favour with a commercial market populated with clients of ever-increasing sophistication.

The key differentiator ?

Perhaps the feature of Riverview that it sees as its key brand differentiator is its ability to offer bespoke, fixed-price solutions including a fixed monthly spend option.  Working for fixed fees is nothing new to solicitors or barristers, but with this comes the freedom to decline to act on this basis in cases where the amount of work involved is unpredictable.  Riverview is unlikely to have the luxury of this choice.  Having put fixed fees unequivocally at the forefront of its brand, its differentiator will be lost if this approach is not applied consistently.  This means regularly running the risk of operating unprofitably unless this risk can be robustly mitigated.  If it can achieve this then it will certainly give it an edge in the market and it seems confident that it can do so with the application of sophisticated technology.

So is Riverview going to cause the claimed market disruption ? Nobody can doubt that it is an interesting arrival on the legal services scene.  Although it offers no individual facet that is completely ground-breaking, it has raised the profile of the shortcomings customers encounter with existing providers and represents a commendable attempt to harness and apply consistently the best of current good practice.

If it delivers as it promises it will surely prompt many in the business to up their game, bringing about further increases in the quality, value and accessibility of legal services. This can only be good news for the consumer and the health of the legal industry.

Bar overplays independence card

This is a copy of my recent article for Legal Cheek, a legal news and comment website full of lively, provocative and informative material.  And this too …

On Monday the listed Australian law firm Slater & Gordon kicked off the Legal Services Act (LSA) era in earnest when it announced its market-wowing £54m acquisition of Russell Jones & Walker. Amid all the excitement about who could be next, it’s easy to forget that it’s not just law firms considering the potential threats and opportunities arising from the fast evolving landscape, but also barristers’ chambers.

Not that barristers chambers are exactly in the hot seat when it comes to LSA-led change. Being predominantly a referral-driven business, chambers tend to adopt a “wait and see” approach based on any changing requirements arising from what the referring law firms are doing. Of course, there’s risk in this approach as it relies on sets being sufficiently agile to adapt rapidly when required.

Chambers’ ability to move fast is far from a foregone conclusion – in no small part because the set-up of barristers’ chambers is unlike most other commercial organisations. Steeped so deeply in tradition and moulded around the expectations of the barristers within it, the chambers structure is inherently ill-suited to change, particularly of the swift and radical variety.

Among the characteristics we often hear cited as the Bar’s key strengths are the fierce independence and individuality of its members: independent thinkers working in their own individual ways to unlock that genius, providing uniquely innovative ways of dealing with the difficult challenges presented by advocacy and specialist legal practice. This is what sets the profession apart, we are told, in enabling the breathtakingly high standards of intellectual ability to come to the fore to the benefit of clients and, ultimately, justice.

While I have no doubt that there is some truth in this, I cannot help thinking that the independence card is rather over-played. Of course it helps to provide high professional standards for each practitioner to be able to work in ways that they feel are optimised for their individual needs; like a writer might prefer to sit in front of their favourite view in order to be inspired, or an artist perhaps painting to music of the appropriate mood.

In this respect, individuality is undoubtedly a strength. But it can also be a critical weakness in a climate where one of the emerging challenges will inevitably be the ability of the organisation to adapt quickly and seamlessly to meet demands from the market to provide uniformity in quality and methods of service.

Here, individuality and independence can really hold a business back – especially if they are applied gratuitously. For example, does a barrister’s individuality really need to prevent them from giving a prompt response to an enquiry about availability, the timing of a piece of work or a simple, unqualified answer to a request for a fixed fee quote? Is it really independence that precludes the prompt provision of billing details in a form that fits in with the organisation’s and client’s requirements?

It is too convenient to accept that a hugely variable standard in provision of such essentials is inevitable, given the characteristics of barristers. The legal market seems to roll with it; I wonder, though, how many other industries would be so forgiving, especially with the effort required to conform to some basic organisational principles pretty minimal?

The tendency towards the individual approach is compounded by the structure of chambers and the resulting organisational culture. A set of chambers is a simple business structure consisting of a group of self-employed barristers billing and receiving payment for their own fees on an individual basis. From their receipts they pay a contribution – typically around 15% – towards shared “chambers expenses”, covering normal business overheads such as rent, staff, marketing and IT.

But is it really right to describe these as expenses in the conventional sense of the word? There is no doubt that, in terms of mechanics, each member does indeed part with a sum of money (usually by way of monthly direct debit) in return for a service. Thus from their point of view, there is a sense of paying a fee for a service – and with that comes the resulting entitlement to their “pound of flesh” (which is understandable: as fee paying customers, why should they not be entitled to expect service in a form that is tailored to their personal preferences?).

But this approach doesn’t sit quite right in the context of commercial organisations. In reality, barristers clerks and chambers administration staff don’t provide personalised services in the same way as you would expect from, say, a hairdresser (where you might specify what style you would like) or perhaps a taxi driver (to whom you might express a preferred route or ask for the heating to be turned up). There are two crucial differences. First, in the chambers scenario, barristers are paying for a shared service that comes from restricted resources that need to be used prudently and fairly in order for the system to function. Secondly and more importantly, chambers provides an enabling service; an essential service without which barristers would be unlikely to be in business at all.

Accordingly, I suggest that a more realistic way of looking at the situation would be for barristers to consider themselves part of an organisation where they are paid 85% commission on their sales. That’s a pretty good deal in most businesses. Putting the payment process to one side, this concept better reflects commercial reality. It also demonstrates recognition of the value of being part of the organisation and serves to promote a mindset of strong commitment to the group and a degree of conformity with its way of doing business, with the ultimate goal of providing services to clients in the most effective and competitive manner.

Many law firms are currently having to face up to some difficult threats to their market share, profitability and ultimately survival. Radical changes in strategy and operations are being considered. In contrast, a minor cultural shift and a little administrative effort may well be all that is needed for the Bar to keep pace comfortably with the demands of the marketplace. There is no reason why the Bar’s treasured traits of independence and individuality should not continue to be potent attacking forces, but unless applied thoughtfully they could contribute to the scoring of a decisive own goal.

What they don’t teach you at Bar School

Let’s be clear here.  I genuinely do not know what they do teach at Bar school.  Some law stuff and a bit of advocacy I guess.  I’ve never really known much more than this and I’m not sure if it’s relevant to my day-to-day business of managing and promoting a set of chambers. If it is, well, too late …

I know that becoming a barrister involves a pretty long slog academically followed by the immensely tough challenge of finding a pupillage and ultimately a tenancy.  There can be no doubting the rigour of this process.  Having come this far, a barrister can be forgiven for assuming that they have done all the hard work and that success in practice is a foregone conclusion.  It is indeed an impressive achievement, however it arguably leaves them ill-prepared for many of the fundamental challenges ahead such as the practical, real world application of legal expertise, developing relationships and building a successful, progressive and sustainable practice.

The weakness of pupillage

These vital skills need to be developed from beyond the formal education process, which starts with the transition phase from qualification into practice, pupillage.  This involves spending a year under the supervision of a small number of different barristers who meet the “pupil supervisor” requirements.  These requirements are hardly stringent and the supervisors themselves are there by virtue of an identical process, with equally little guidance in the non-academic aspects of legal practice.  They may or may not have since picked up the right commercial and practical skills to be considered a good example, yet this does not seem to be a factor in their eligibility for this role.  This makes it something of a lottery whether or not a pupil is placed with someone able to set the right example for someone newly facing a changing legal marketplace.  The problem here is that the pupillage process is regarded as one in which the pupil is encouraged to follow their supervisor, rather than view them in any way critically.  In this respect, it is wrong to assume that the supervisor’s strong reputation or financial success means they are someone suitable to set an example: many outstandingly academic barristers have in the past achieved such successes in spite of practical shortcomings.  I doubt that the modern marketplace will prove to be so forgiving.

I ought to add here that I am not for a moment advocating that a pupil be vocally critical of their supervisor – that would be a surefire form of career suicide – merely that they should look to learn from their weaknesses as well as their strengths.  You can be sure that they will have weaknesses.

Barristers have been blindly following each other through this system for generations, so it is no wonder why the Bar is perceived as a  group where change comes very slowly.  But evidently this tried and tested formula is a successful one, despite my misgivings, as here we are in a legal marketplace where the Bar holds an enviably strong position.

What I do know is that if I were starting in practice now, I would want to see leadership, guidance and critical appraisal from a variety of angles in the early stages of practice, rather than simply to follow a self-perpetuating system led by those who possessed what may have been a formula for success at the Bar ten or fifteen years ago.  This is not to say those individuals would not be equally successful if entering the Bar now, but the question is how do we know ?  This is not, I suggest, something that should be left to chance.

Ethos

So what is the right way to go about building the foundations of a practice ?  Most of the genuine success stories I have seen at the Bar have not been down to a clever marketing and business development strategy.  Nor from wining and dining solicitors or social-climbing among the legal fraternity.  Not from being the cleverest lawyer out there.  And not even from buttering up the clerks (although I would not discourage this admirable practice …)

No, most of the examples I can think of of genuine, sustained success at the Bar have one thing in common: a fundamental ethos of pure, uncompromised focus on, enjoyment of and passion for solving legal problems – whoever the client, whichever firm instructing, whichever court or tribunal, whatever the state of the instructions and whatever the fee or funding basis.  Such an approach soon makes excellence become an enjoyable habit.  This in turn generates an appetite for work that enables volume and thus variety of opportunity for increasing experience as well as exposure in the marketplace: optimal visibility to professional & lay clients, both instructing and opposing, to judges, other barristers, witnesses and other observers in court.  They all have a voice and with this approach applied consistently the potential for reputation growth increases exponentially, maximising referrals, building experience while in the meantime excellence becomes the norm for your way of practice.

In contrast, seeking to selectively impress, to manufacture a practice, to chase the big-ticket work or the glamour law firms creates a distraction from the real business of committing to excellence.  The practice that you seek will find you naturally in time if you make consistent excellence in service the priority over the temptation for seemingly shorter routes to success.  Of course it remains essential to devote time and effort to properly focused marketing and sales activities, but it is important to remember that this process will only ever bring opportunity (in the singular – you usually get only one chance to impress, before clients look elsewhere in this crowded market).  This in itself will not build a practice for you.  Only referrals will do this and these come from using opportunities to provide exceptional service experience for your clients.

Client Focus

Client focus is a phrase that is often quoted as the key for success in legal practice.  Genuine focus on your client’s needs.  But we all care about our clients, don’t we ?  Well, what does client care really mean in practical terms ?  Here are a couple of random illustrations :

  • A business client needing some advice in order to make a strategic decision at a board meeting tomorrow needs the best advice you can give, for that purpose, before that meeting.  Your perfectly researched detailed opinion on how to win at trial, delivered the day after tomorrow, on expensive paper with pretty spiral-binding, may be very clever but its value to your client at this point is likely to be limited to wrapping fish and chips. (And that’s only if they can remove the binding, which can be quite tricky).
  • When a client asks for an invoice, this is not an insignificant, irritating bit of admin that is subordinate to the real business of legal excellence.  In fact, they need to know quickly how much money needs to come out of their account, because cash flow is rather important to the running of business or personal finances.  Both solicitor and lay client may well have systems in place for processing payments with people being paid to run them who may be wasting time waiting for this information.  It is important to them.  More so than it may obviously appear to you.

Diverse and simplistic examples perhaps, but deliberately so.  The key message is clear.  Taking the trouble to understand and act on what genuinely matters to your client is the essence of what client care is and this comes in so many more forms outside what you might regard as your primary focus.  Possessing a mindset where you can visualise what your client needs – as opposed to what you want to provide to them – is a key skill.  When applied, it gets you noticed and can provide a genuine competitive advantage in the marketplace.

Practice Development

Practice development is another one of those phrases that sounds like a good thing to do, but nobody quite knows what it looks like.  Of course, success in practice development depends very much on each individual’s goals and aspirations, but I think common goals for most barristers might be progression, challenge, variety and financial security.

Progression is a difficult one to put your finger on.   Milestones can be identified specific to each practice area and can usually be defined by levels of complexity, value or perhaps tribunal, with small stepping-stones between one stage and the next, with a leap of faith being required at some point on the part of a client prepared to send you into personally uncharted territory.

Let me make clear that fee income is a very flakey way of measuring success.  I wish I had a pound (no, let’s make it £1.50 and increase it to £1.75 next week for no justifiable reason…) for every time a barrister suggested “progressing” their practice by increasing their charging rate.  Increase the rate to increase income, an obvious route to success – provided you are operating in a completely ignorant marketplace.  Perhaps this was once the case but right now the legal marketplace is anything but ignorant and indeed is rapidly increasing in sophistication.  This sort of short-term approach to fees can be extremely damaging, particularly in the earlier years of practice and any modicum of commercial reasoning dictates that it should be resisted.  The fact is that the market will dictate the sort of fees you can charge and if you can progress to the right areas of the market, the work will attract higher fees.  But you have to do the hard work to get there first.

The simple answer to what really indicates the successful development of a practice is referrals.  It starts with repeat business from a particular client, developing over time into more widespread “word of mouth” referrals.  There can be no more clear and reliable indicator that you are doing something right than if someone chooses to put their trust in you again, and more so if they put their reputation on the line to recommend you to someone else.  This is what every new barrister should have foremost in their mind in their early years as the most important yardstick for progression and as they key ingredient for a solid platform for long term success.  I really cannot stress this enough.

It’s really quite simple, isn’t it ?

In putting together this post, I have simply and somewhat randomly set out what have seemed to me over the years generally to be the most common issues of weakness displayed by barristers in practice.  To me, they really do seem obvious and straightforward, to the extent that reflecting on this post I am wondering why I even need to spell them out.  I mean surely during the course of one of the most arduous and demanding journeys to becoming a member of such a highly respected profession, someone must teach them this stuff.  Mustn’t they …?

The Bar – Time for a Culture Shock ?

This is a copy of my recent article for the Pupillage Blog, which I can highly recommend as an insightful, engaging and comprehensive online resource for aspiring barristers.

I have for some time been considering writing about my thoughts on practice at the Bar, from my perspective as a barristers’ clerk, as a guide for new or aspiring barristers.  This process has, perhaps surprisingly, been hampered by considerable hesitation.  I have found myself thinking along the lines of: “Me, a non-legally-qualified clerk ? Telling the guv’nors what to do ?  Qualified barristers, the cream of the legal profession…?” and so on, wondering whether it is my place at all to give advice to such highly intelligent individuals.

This is all, of course, complete and utter nonsense, yet I am far from alone among my peers in such musings.  It must say something significant about the culture at the Bar that such doubts are troubling those who have for years occupied the “coal face” of service delivery in the profession and whose role involves close and constant contact with all sections of the marketplace.

The thrust of this introduction therefore is that in order to think about how best to progress in the future, following the approaches and attitudes of the past really is not the best start.  Perhaps it is time to realise that the culture at the Bar is restricting its progress at a time when it badly needs unfettered ability to adapt to the increasing demands of the market.  As ever, prevention is easier than cure, which is why understanding these issues at the start of a career can prove invaluable in unlocking the potential for a successful practice.

The good news is that none of this requires any kind of revolution or rebellion against the established order.  It doesn’t need anyone to stand up and shout “no !” to the establishment at a time of their career when they are, quite justifiably, keen to conform to the accepted order of the profession to which they have worked so hard to gain entry.

It is simply a question of adopting a mindset that is free from the assumptions of the past, thus liberating them to go about the business of providing a service based on what the market wants to receive, as opposed to what the provider wants to give. In reality the two are not that far apart, but the gap between them is becoming more and more exposed in an increasingly customer-led environment.

The starting point for redressing this comes with the recognition that the Bar is fundamentally a service industry and while reliant upon high levels of professional expertise, has much in common with many other lines of business that we all deal with in everyday life.

Why should it be that so many barristers find it hard to see things from a client’s perspective by drawing a parallel with their own experiences of, say, having their car serviced ?  Most likely, they would not be able or inclined to service their own car, so would need to entrust the job to someone with expertise that they don’t have themselves. I suspect they would want to know when the job would be completed and that it would be finished on time, as promised.  They would want to be confident that the work was being carried out by someone suitably qualified.  They would want to know how much it was going to cost and the basis on which the price was calculated.  You can be sure they would demand a good explanation for running late or going over-budget.  Ultimately, they would expect their car to be running smoothly and to have any follow up queries dealt with promptly and without charge.

This is a simplistic comparison, I know.  Yet for many years I have seen evidence in practice of an instinctive expectation by barristers that clients will accept, without challenge, situations that would be completely unacceptable to them if roles were reversed.  To make matters worse, they know full well that the vast majority of these clients are themselves lawyers, which makes these expectations even more unrealistic and, when you think about it, completely irrational.

But these are not the type of people who you would generally describe as irrational, yet here they are clearly displaying an irrational mindset.  Difficult to change, perhaps, when it is a deeply-rooted legacy of generations of flawed culture.  But not at all difficult to avoid in the first place for those to whom it is visible and recognisable as a dangerous obstacle.